The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.22 of 1996 (In the matter of an application under Section 374(2) and 375 of the Criminal Procedure Code, 1973) Jagannath Padhi and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. S. N. Sahoo, Advocate For the Respondent : Mr. A. K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Sections 374(2) of the Cr. P.C., is directed against the judgment and order dated 22.12.1995 passed by the learned District Judge-cum- Judge, Special Court, Phulbani in G.R. Case No.82 of 1994, whereby the
Legal Reasoning
learned trial Court has convicted the accused-appellants for the offences punishable under Section 7 of the Essential Commodities Act, 1955 (herein after ‘E.C. Act’ for brevity) and, accordingly, sentenced them to undergo R.I. for four months each besides fine of Rs.300/-, in default, to further undergo R.I. for one month. 2. The prosecution has charged the appellant Nos.1 & 2 for offences under Section 7(1)(a)(ii) of the E.C. Act read with Rule 10 of the Orissa Kerosene Control Order, 1962. However, in so far as the other appellants are concerned, they stood charged for alleged offences punishable under Sections 6 & 7 of the E.C. Act. 3. The prosecution alleged that on 02.03.1994 at about 7.00 P.M., the appellant No.2 on behalf of appellant No.1 illegally sold 35 liters of kerosene oil to appellant Nos.3 & 4. The allegations are essentially regarding the pilferage of stock of kerosene of the retail shop situated at Sarangagada, which was made for consumption of public. The detailed prosecution story which eventually reflected in F.I.R. and the prosecution went to prove the same is tersely and briefly narrated hereunder:- Page 2 of 9 a) As per the F.I.R. lodged by one Sahadev Patra on 02.03.1994 at 8:00 PM at Sarangada Police Station, is that on the same day at around 7:00 PM, one Bagha @ Ananta Padhi, elder brother of Jagannath Padhi, opened the control shop and handed over a plastic jerry can (Jarkin) to the accused persons, Ramakrushna Padhi and Rajendra Panda. Thereafter, Ramakrushna Padhi held a bicycle while Rajendra Panda carried the jerry can behind him, and both proceeded towards Patarasahi. b) Suspicious of their actions, the informant along with his friends, Prafulla Kumar Bissoi and Jasobanta Bissoi, followed them. Upon intercepting the accused persons, they inquired about the contents of the jerry can. On opening it, they found that it contained 35 litres of kerosene. The informant and his companions then took possession of the jerry can and kept it in the custody of one Pindika Patra. c) Subsequently, Sahadev Patra lodged the FIR, based on which the police registered Sarangada P.S. Case No. 9 dated 02.03.1994, and seized the jerry can from the house of Pindika Patra. The matter Page 3 of 9 culminated in the registration of G.R. Case No. 82 of 1994 before the Court of the Special Judge, Phulbani. 4. The prosecution in order to bring home charges examined seven witnesses. Out of which, P.W.1 is a seizure witness. P.W.2 is the F.I.R. named witness, P.W.3 is the informant in this case, P.W.4 is the ex- mutha head (unclear), P.W.5 is the wholesale dealer of the kerosene, P.W.6 is the initial I.O. and P.W.7 is the subsequent I.O. 5. The learned trial Court analysed the evidenced on record in detail and returned the following findings:- “7. It is the cardinal principle of criminal jurisprudence that the prosecution is required to prove it's case against the accused persons beyond any reasonable doubt. It is the case of the prosecution that accused No.1 is the retail dealer of Kerosene oil for Sarangagada. According to P.Ws. 2 and 3 accused No.1 was not present or parted with this 35 liters of kerosene oil to accused Nos. 2, 3 and 4. Thus, accused No.1 has not associated himself in parting 35 liters of kerosene oil by accused no.2 in favour of accused Nos. 3 and 4. P.W.5 has said that he had issued 200 liters of kerosene oil on 26.2.94 to accused No.1 vide Ext. 6. According to P.W.6 on 2.3.94 at 8.30 P.M. he weighed the balance stock of Kerosene Oil available at the retail shop of accused No.1 and ascertained the balance stock of Kerosene available at hands of accused no.1 was 23 liters. The evidence of P.W.3 that they collected 27 ration cards of ward no. II of villager sarangada(Ext.7) and came to know that 70 liters of kerosene has been issued to the consumers from the total stock available has not been braathed by that Page 4 of 9 either P.W.6 or P.W. 7. But, nevertheless, this fact is suggestive that, accused No.1 issued Kerosene oil to at least to 27 persons to the knowledge of P.W.3. By this testimony of P.W. 3, it cannot be said conclusively that accused No.1 had not issued Kerosene to any other persons other than the 27 persons as per list in Ext.7. If might have so happen, the accused no.1 might have sold Kerosene oil to other consumers of village Sarangada after 26.2.94. Neither P.W.6 nor P.W.7 has seized the sale register of Kerosene oil of the retail shop of accused no.1 to ascertain the quantity sold to the consumers to come to the conclusion that accused No.2 parted with 35 liters of Kerosene oil from the stock of Kerosene meant for the consumers of village Sarangagada kept in store by accused no.1 being purchased from P.W.5 under Public Distribution system. It might be a fact that accused No. 2 might have kept the stock of 35 liters of kerosene oil separately inside that retail shop of accused no.1 to part with that stock of Kerosene oil to accused no.1 to part with that stock of kerosene oil to accused nos. 3 and 4, as has been witnessed by P.Ws. 2 and 3. Thus culpability of accused Nos. 2, 3 and 4 can be said to have been well brought home.” 6. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually the learned trial Court arrived at the following conclusion:- “On the evidence on record, this quote is of the view that prosecution has not been able to establish Nexus of accused No. 1 with accused No. 2, 3 and 4 to attribute abatement of any offence committed by accused No. 1, this Court is of the view that offence U/s. 8 of Essential Commodities Act has not been brought home against any of the accused persons. On the evidence on record, the criminal culpability of accused No.1 that accused No.1 contravened Rule 10 of Orissa Kerosene Control Order 1962 independent to the Criminal overtact of accused Nos. 2, 3 and 4 have been amply brought home by the prosecution. Accordingly, Page 5 of 9
Decision
accused No.1 can be fastened with the Criminal liability punishable U/s.7 of the Essential Commodities Act. Similarly, the Criminal liability of accused Nos. 2, 3 and 4 have been amply brought home by the prosecution that accused nos. 2, 3 and 4 contravened S. R.264/82 dated 19.4.1982 of Food & Civil Supplies Department. Government of Orissa read with the Orissa Kerosene Control Order 1961. Accordingly their criminal liability can well be fastened within the scope of Section 7(1)(a) (ii)of the Essential Commodities Act. Thus, in the result, all the accused persons are found guilty for the offence Under Sec. 7 of the Essential Commodities Act and are convicted there under. But, however accused Nos. 2, 3 and 4 are found not guilty for the offence under Sec. 8 of the Essential Commodities Act and are acquitted thereunder by virtue of section 248(1) Cr. P. C.” 7. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned District Judge cum Judge, Special Court, Phulbani, the present Appeal has been preferred by the appellants. 8. Heard Mr. S.N. Sahoo, learned Counsel appearing for the appellants and Mr. A.K. Apat, the learned Additional Government Advocate for the State. 9. Mr. S.N. Sahoo, learned counsel for the appellants has strenuously argued the case on merit and taken me to the evidence on record. After arguing for some time, he submitted that keeping in view the Page 6 of 9 procrastinated judicial process undergone by the appellants in this case and the ordeal of trial faced by the appellants, he would rather confine his argument to the quantum of sentence instead of arguing the matter on merits questioning the conviction. He submitted that the incident pertains to the year 1994 (2.3.1994). The appellants have undergone the rigors of trial for about two year. Thereafter, the appeal was preferred in the year 1996 (18.1.1996). The appeal has been prolonging to be heard for about 29 years. At the time of incident, the appellants were very young at their 20s. At present all of them are at their late 50s, leading a respectful life along with their families. None of them have any criminal antecedents. Therefore, sending them to serve out the custody period at this belated stage would serve no purpose, rather it would be harsh and would have a cascading effect on the entire family. A stigma would be attached to the entire family if the appellants are incarcerated. Therefore, in the fitness of situation, the appellants may be extended the benefit of Probation of Offenders read with Section 360 Cr.P.C. 10. Taking into consideration the entire conspectus of the matter, it would be apt to rely on the judgement of Hon’ble Supreme Court in Page 7 of 9 Tarak Nath Keshari V. State of West Bengal1 , in which it was held thus: - “11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab. 12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence.” 11. Besides the judgment quoted above, regard being had to the age of the appellants, their societal position, clean antecedents and the fact that the incident had taken place in the year 1994, I am of the considered view that all these appellants are entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellants are also covered by ratio of the judgment of this Court in the 1 2023 SCC OnLine SC 605 Page 8 of 9 case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2. 12. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 13. With the above observation, the CRA is accordingly disposed of. The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna (S.S. Mishra) Judge 2 2012 (Supp-II) OLR 469 Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:46:04 Page 9 of 9